October 22, 2014

New Marijuana Laws Raise Complex Legal Questions

As news of legalized marijuana continues to spread across the country, Maryland is now getting its turn...in a way. A new law has already taken effect that reduces the penalties for being found with marijuana, and while the new law doesn't make possession completely legal, it significantly reduces the consequences for being found with marijuana in your possession.

New Law Decriminalizes Possession of Marijuana

It used to be that possessing marijuana was a crime, punishable by the criminal code with possible jail time. But as of October 1, 2014, possessing less than 10 grams of marijuana will now be considered a "non-criminal" event, meaning that while you can still be punished with fines, there is no jail time, and the offense is not classified as a criminal offense. It isn't much different than a traffic infraction or parking ticket.

It is still a crime to carry drug paraphernalia. Possessing over 10 grams of marijuana is still a crime. If it's found that you had an intent to distribute marijuana, that's still a crime, regardless of how much pot is found.

This begs the question of how an officer knows how much pot is too much just by looking. Officers won't be carrying scales with them in the streets, and the difference between 8 grams and 11 is not an easy distinction to make by eye.

Maryland law enforcement agencies have decided that they will use the ever-so-trustworthy "best guess," and may arrest if the amount of pot simply looks like 10 grams.

So, although it's not a criminal offense to have 9 grams of pot, you can still potentially be hauled to the station for an official "weighing." After weighing the pot, if it later turns out that there was less, citizens will be allowed to leave (with, of course, their official citation, and of course, without their pot).

If it turns out that it was more than 10 grams, but they thought it was less than 10 and only issued a citation, they won't track you down and press the more serious criminal charges.

Legal Issues May Arise From Searches

The new law brings up loads of very complex legal issues.

The most obvious are the maintenance and uniformity of the scales being used. When fractions of grams make a difference between criminal and non-criminal infractions, law enforcement should have an obligation to use properly calibrated, functioning, highly accurate equipment. It's unknown whether that will be the case.

Probable cause is a big problem as well. Normally, an officer that observes you committing a crime has probable cause to search you or your belongings. How does an officer know if probable cause exists if she doesn't know whether you have 9 grams (which may not provide probable cause to search you, not being a criminal offense), or 11 grams (which would provide probable cause)?

What happens if, for example, an officer searches your glove compartment because he's convinced you have 11 grams of pot? There, he finds an illegal handgun. Later, it turns out you only had 9 grams of pot. Is the search of your glove compartment now rendered illegal?

These are legal issues that play themselves out in criminal courts all the time. It looks like with the passage of the new law, there will be some significant legal questions related not just to marijuana, but other criminal charges as well.

Do you have questions about any search, seizure, or new criminal laws? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

September 22, 2014

Electrocuting Defendants In Court May Be a Growing and Troubling Practice

We're all familiar with the police's ability to shock--or "tase"--as a method of subduing the unruly or those resisting arrest. It's generally seen as a more humane alternative for police to gain an upper hand, rather than use lethal force.

But in one Maryland criminal courtroom, it was not the police doing the electrocuting during an arrest. It was the judge ordering it, inside his courtroom, and during the defendant's own trial. And you'll be shocked (pun intended) to learn that this isn't the first time defendants have been shocked in open court.

The Use of Electronic Control Devices

It's actually not uncommon for defendants to be fitted with devices that allow officers to shock them in court if needed. Such devices are often used as a security device for self-represented defendants, who need to be able to walk about the court during their trial and present their case. But obviously, actually electrocuting defendants is supposed to be reserved for when the defendant presents a threat, and not when they're simply making arguments the judge doesn't like.

Such was the case in a Maryland criminal courtroom recently. A criminal defendant continued to argue his own legal theory, as unrepresented criminal defendants often do, after a judge told him to stop. But rather than threaten contempt, or just wait until the defendant was done with his argument, to stop him from talking, the judge ordered the defendant electrocuted, in open court. The judge then continued the trial, as if nothing had happened. The Judge has since been removed from the bench by the MD court of Appeals.

The events are similar to a 2004 incident in Utah, where a college professor who was known to be mentally ill, but not dangerous, was ordered to be seized by the judge. Although he was agitated, he threatened no one. Yet, he was severely and immediately electrocuted in open court, though it's unknown if that was according to the judge's orders.

Improper Uses of Electrocution Threaten Valuable Rights

Both of these cases demonstrate the improper usage of electronic control devices as torture mechanisms, used at best to subdue defendants who could easily be subdued other ways, and at worst, as a way to deal with the mentally ill who the courts don't have the patience to deal with in any other manner than undue force. The mentally ill, who may be unfairly perceived as "scary," and who may be less likely to understand the need to hire an attorney, or the courtroom rules, are at particular risk.

Aside from the obvious problems with tasering people in open court, the readiness of a court to electrocute a defendant presents serious threats to a defendant's constitutional due process rights. A defendant has a right to a fair trial, and to defend himself in court. But a criminal defendant fearful of receiving 50,000 volts is more likely to be quiet and less likely to challenge witnesses or make arguments, even if they may not be legally sound ones anyway.

A criminal defendant tasered in front of a jury likely poisons the jury into thinking he is dangerous, ill, or more likely to have committed the crime he's charged with.

Even the most unexpected situations can result in a loss of your constitutional rights. Don't risk a criminal trial by going it alone. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

September 9, 2014

Maryland Court Decides that Drivers Can Be Punished for Driving with Suspended but Expired Licenses

Can you be punished for illegally using something you no longer have? That bizarre question was recently decided by a Maryland Appellate Court in deciding whether a defendant could be convicted for driving on a suspended license that had already expired.

Specifics of the Case

Robert White was accused of driving on a revoked or suspended license. His license was suspended for failure to pay child support. His defense was that he couldn't be punished for driving on a suspended license, because it had already previously expired. Because his license was expired at the time of his arrest, White argued, it was as if he didn't have a license, and thus the state can't punish someone for driving on a suspended license that no longer exists due to its expiration.

It's established law that someone never issued a license can't be convicted of driving on a suspended or revoked one. White argued that having a license that had expired was functionally the same as never having one--in both cases, the license is non-existent, a renewal application has to be made to obtain one, and one would not have a privilege to drive. If someone who never had a license couldn't be convicted of driving with a suspended license, neither could someone who had one but it had expired, he argued.

But a Maryland appeals court has rejected that argument, making a distinction between one who never had a license, and thus never had a privilege to drive, and one who at one point had a valid license and privilege to drive, but lost it, as White did.

The court rationalized that if it accepted White's argument, it would actually provide an incentive for someone to allow their license to expire.

For example, was your license suspended because of failure to pay child support? Simply allow the license to expire, if it expires sooner than the time period your license is suspended, then the legislative punishment of driving on a suspended license would cease to exist.

Contact Us for Professional Legal Help

Problems with your license or any charges or arrests relating to it? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

August 25, 2014

Can You Videotape Police Officers?

With the recent events in Ferguson Missouri and other areas, the question is being raised whether bystanders can film police officers while they are doing their jobs, and to what extent police officers can prevent filming or even confiscate cell phones or erase videos.

The Law of Taping Officers

For a long time, some police used wiretapping laws to claim that they couldn't be taped. These are laws that generally prohibit recording or filming someone without their knowledge or permission. But that is no longer the accepted law.

Today, any court deciding the question has determined that it is a recognized first amendment right to film the police. In fact, the NYPD recently reminded its officers by memo that filming by the public was legal. But that doesn't make the right to tape absolute.

Any taping which obstructs with an officer's ability to do their job won't be upheld as a first amendment right. Shove your phone in the officer's face as he's arresting someone, and you're likely interfering with the officer's ability to do the job. And of course, in the heat of a fray, if you reach into your pocket to get a small black handheld object, you may know it's your phone - but the officer may well think it's a weapon.

Officers May Still Wrongfully Deter You From Taping Them

Many police departments have been slow to get the message. Reporters from the Huffington Post and Washington Post (one who was a respected Black Journalist of the Year Winner) were recently arrested for filming police activities. The charges were later dropped. And while police may still use force if you resist them, seizing your phones or deleting videos can still lead to lawsuits against the police. Such was the case with a 37-year-old Austin, TX man arrested after filming an arrest, who later founded an organization encouraging people to videotape police.

Although no federal court has said that the police can't be filmed, many federal circuits simply haven't addressed the issue, leaving it up in the air in some regions of the country. Although it's likely that if tested, the right to record would be upheld nationwide, if there is a dispute and you end up in court, it would be up to a jury to decide if you're filming disrupted the officers enough to prevent them from doing their jobs.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

August 21, 2014

Removal of Names From Sex Offender List is Based on Sound Legal Principles

Thousands of defendants convicted of sex-related crimes are being removed from Maryland's sex offender lists after a recent court ruling. Although the initial reaction is outrage, the legal principles that justify removing the names are sound and serve to protect all criminal defendants no matter with what crime they are charged.

What is the Sex Offender Registry?

In Maryland, like many states, if a defendant charged with certain sex-related crimes is convicted, the accused is labeled a sex offender. The sentence doesn't have to be severe--a defendant could accept a penalty of probation and no jail time, but still be forced to be labeled a sex offender.

Out of concern that individuals charged with these kinds of crimes could be a menace to the public, states such as Maryland developed sex offender registries or lists, which are simply databases where people can search their neighborhoods and be alerted to who may be living around them that has been designated a sex offender.

Why People Are Being Removed From the Registry

The reason why thousands are being removed from the current list is because of what is known as retroactivity. In criminal law, retroactivity means that if you are convicted of a crime, and the punishment for the crime is increased after your conviction, you only are subject to the punishment as it existed when you were convicted--not the new, increased punishment.

Maryland's registry was created in 1995. So, if someone were convicted of a sex crime in, for example, 1992, before there was a registry, they were still being included in the registry. A Maryland appellate court has now said that those convicted before the registry existed must be removed from the list because the punishment of being on the registry didn't exist when they were convicted.

This seems like a legal technicality preventing people from identifying dangerous people who may be living among them. But actually, it's a victory for due process and legal fairness.

For an example, imagine you were convicted for possession of marijuana. You are convicted and given a maximum penalty. Just as your prison term is about to end, the legislature changes the law, raising the maximum penalty. Now you would have to serve the new maximum. And just as you are about to finish that term, the legislature decides that a fine of $100,000 can be assessed for people convicted of your crime. Now you owe that money. The punishment and prison term could never end.

Or, imagine that you take a plea. You know the maximum penalty for your crime is one year, so you decide to risk it and go to trial. You may not have made that decision if the maximum jail time was 5 years, or 10. There would be no way for criminal defendants to make educated decisions about plea bargains, without some certainty in their potential penalties if convicted.

Retroactivity is designed to allow criminal defendants to have a definite, understandable, and established penalty. It is also designed to protect criminal defendants from unending sentences, which could be the case if they were always subject to changing laws, years after their conviction.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

August 5, 2014

Driver Who Hit "Zombie Walkers" Won't be Charged With a Crime

The annual pop culture, movie and comic gathering Comic-Con in San Diego has unexpectedly brought forth some interesting questions over who is responsible for a woman hit by a car. Differing opinions of what actually happened, the oddity of the situation, and the subjective beliefs of the parties all have created enough confusion, that the driver who struck the pedestrian will not be charged.

What Exactly Happened?

The San Diego Comic-Con, which concluded last week, featured a "zombie walk" (although the walk was not an official function of the comic-con, but was apparently staged by zombie fans). The event entails individuals dressed as zombies, walking the streets in celebration of the zombie pop culture phenomenon.

At one point in the walk, the crowd crossed a street, and according to one report, held up traffic for a good ten minutes. A car waiting for the crowd to pass lurched forward, to try to part the crowd, and then sped away at high speed, striking a woman. But the agreement in facts apparently stops there.

The passengers in the car, all members of the driver's family, were all deaf, and some were young children. The children became quite frightened, causing the driver to try to slowly lurch forward, likely in an effort to get the zombie crowd to part. Any parent of young children--particularly deaf or handicapped ones--can relate to the concern of the parent in reacting to the children's fear.

Upon lurching forward, the "zombies" (and non-costumed members of the walk) became aggressive, sitting on or hitting the vehicle. When the driver sped up to get away, he hit and injured a woman in the crowd. The members of the walk claim that they were peaceful, although video of the event showing them sitting on the car's hood may suggest otherwise.

With all of the confusion and contradiction, it appears that the driver will not be charged with any crime.

Differing Opinions Matter

The situation illustrates how factual nuances can make the difference between a criminal act, and an act where nobody is charged. If a driver slowly lurches forward to try to protect scared, deaf children in the car, that may be a reasonable act. If the driver honks his horn first to try to get the crowd to clear a path, that may be an act showing an initially peaceful intent by the driver. If a driver speeds away to avoid rowdy crowds, where people may be sitting on the hood or banging windows, and injures someone, that may be self-defense, or at least a reasonably justified act. A car surrounded by a few people may not be justified in speeding away and injuring someone, but a car surrounded by hundreds in a mob may be justified.

Facts, often disputed and nuanced ones, make all the difference, and even with video, the facts can be interpreted by a number of ways by a jury or even a prosecutor deciding whether to charge a crime or not.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the rights of individuals that have been charged with a crime and investigating all the facts related to their case. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

July 21, 2014

iPhone Charger Argument Overturns Murder Conviction

An error in a prosecutor's closing argument at a murder trial, and, of all things, an iPhone charger, have come together to overturn a murder conviction of a man accused of killing his youth mentor inside a vehicle. That vehicle had an iPhone charger in it, which became the focus of the appeal.

Facts of the Case

Defendant Antomar Jones was accused of killing a man, who was his youth mentor, inside of a vehicle. Jones' defense was that he killed nobody--he was inside the vehicle to purchase marijuana, and was just charging his phone. To counter his testimony and poke holes in it, the prosecution argued that the charger found in the dead man's car was an iPhone charger--not suitable for use in charging for Jones' phone, and therefore he couldn't have been charging his phone. Arguing that if a criminal defendant is lying about one thing, his credibility is at issue for other things.

The argument was made by the prosecutor during closing argument. The argument of the charger not being one for Jones' phone contradicted Jones' testimony and called his credibility into question. The jury convicted him of the murder, and Jones appealed.

Purpose of Closing Arguments

A closing argument is an argument given by parties to a jury at the conclusion of a case summarizing the evidence at trial. Closings can include a passionate argument and common sense inferences that can be drawn from the evidence in a case. What it can't contain, however, are arguments or references to facts or evidence that was never presented during the earlier stages of the trial.

The problem that caused the murder conviction to be overturned on appeal was that there was never any evidence presented during the trial that the charger was for an iPhone versus any other type of cellular phone. It was being argued by the prosecution for the first time at closing. And because it was made during closing for the first time, there was no opportunity by Jones' lawyers to refute the information or explain it away.

The Appellate court, in overturning the conviction, agreed with Jones on appeal, saying that the conflict in Jones' testimony was the centerpiece of the case, and the prosecutor improperly "won" the conflict in testimony by surprising Jones with the iPhone charger argument at closing.

A lawyer is allowed to ask a jury in closing arguments to make inferences based on their common knowledge and worldly experiences. The prosecution argued during the appeal that identifying the charger as an iPhone charger was something that an everyday person would recognize and be aware of as part of their common knowledge and daily experience. Therefore, the prosecution argued, there was no error in making the iphone charger argument for the first time at closing. That argument was rejected by the appellate court, which felt that identification of phone chargers was something that would need to be supported by evidence--not by jury inference.

Our Attorneys Are Here to Help You

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime and have experience protecting defendants' rights in trials. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

July 15, 2014

Supporters Come to Aid of Website Host Charged With Crime Related to Online Bitcoin Marketplace

Technology and criminal defense are merging in the case of a website owner who was arrested for conspiracy, computer fraud and other criminal charges. The criminal charges stem from a website that allowed users to buy and sell illegal drugs using the popular online currency Bitcoin. And now, crowdsourcing is helping the accused pay for his legal defense.

Owner of the Silk Road Facing Charges

Ross William Ulbricht owned and operated a website commonly known as the "Silk Road." The website allegedly allowed users to buy and sell items, including illegal drugs, anonymously. The site used the currency Bitcoin, a virtual, non-physical form of money that has been growing in popularity partly because its users can remain anonymous. In acting as a portal and virtual marketplace, the site allegedly collected fees to the tune of $1.6 billion in sales.

Ulbricht allegedly encountered a problem when a rogue user threatened to expose the identities of Silk Road users, unless he was paid a hefty ransom. Of course, doing so would entirely jeopardize the existence of the website, so Ulbricht allegedly used the site himself to find and hire a hitman to kill the rogue user. This wasn't difficult to do, thanks again to the website's anonymity, which allegedly allowed him to advertise and find the potential hitman to carry out the job. Ulbricht is presumed innocent of all allegations unless found guilty in a court of law.

Ulbricht's Rise to Fame

After his arrest, Ulbricht became somewhat of a hero to Bitcoin and former Silk Road users. Bitcoin users view Ulbricht as having sacrificed himself for the viability of the online, anonymous free market that Bitcoin users cherish. His supporters have even begun raising money for him to finance his criminal defense though crowdsourcing, which is an online public solicitation for individuals to make donations to a cause or business. Other operators of online anonymous portals have also donated money to Ulbricht's defense.

The case is also legally notable in that Ulbricht is being charged not just for allegedly trying to hire the hitman, but also for simply hosting the site that allegedly allowed others to make numerous illegal drug transactions. Rarely is a website owner criminally responsible for actions by others that occur on their own sites. Ulbricht's own attorney points out that being charged with criminal conspiracy and money laundering seemingly have nothing to do with hosting a website.

And then of course, there's the question of whether one can launder money using Bitcoin, which isn't legally recognized as a currency by the United States.

If he is found guilty, it could stifle other internet sites due to fears by web hosters of being liable for what users of their sites are doing and saying. Owners of controversial sites or those which may push the boundaries of the law but aren't necessarily illegal could be targets of criminal investigations. Hosting charges for websites that contain message boards or marketplaces could skyrocket, as many hosting services could refuse to host their sites for fear of liability.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today

July 8, 2014

United State Supreme Court Holds Police May Not Conduct Warrantless Searches Of Cell Phones Belonging To Arrestees

Late last year, this blog discussed a landmark opinion by the Maryland Court of Appeals in the case of Sinclair v. State of Maryland. In that case, that Court held that a police officer who has lawfully arrested an individual may conduct a search of that individual's cellular phone under an exception to the Fourth Amendment's general requirement that law enforcement obtain a warrant prior to conducting any search.

Earlier this week, the United States Supreme Court issued its own opinion addressing the same issue in Riley v. California, holding, contrary to the Maryland Court of Appeals, that police cannot search arrestees' cellphones without a warrant. This ruling has been hailed as a watershed moment by digital rights and privacy activists by setting a precedent that favors privacy.

Specifics of the Case

In Riley, the defendant, David L. Riley, was pulled over for a traffic violation in San Diego in 2009. During a search of Riley's vehicle, police found loaded guns. Following this discovery, Riley was placed under arrest and searched, which revealed items associated with the "Bloods" street gang. Riley's smartphone was also seized and police were able to access information on the phone that connected Riley to the street gang and a prior shooting. At trial, the smartphone evidence was used to convict Riley and he was sentenced to 15 years to life in prison. On appeal, the California Court of Appeal affirmed Riley's conviction.

Generally speaking, law enforcement officers are permitted to search arrestees without a warrant upon apprehension in the interest of officer safety and evidence preservation purposes. This exception to the warrant requirement is known as a "search incident to arrest." It was this exception that the State of California relied upon to argue that the officers had the right to search Riley's phone without a warrant. The Supreme Court didn't buy this argument.

Writing for a unanimous Court, Chief Justice John Roberts held that that searching a cellphone without a warrant constitutes a different, deeper privacy intrusion and that such a search serves neither the interests of protecting officer safety or evidence. The State argued that cellphones should not be treated differently from other objects found on an arrestee's person, such as a wallet. Rejecting this argument, Chief Justice Roberts opined that comparing a cellphone to a wallet "is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together."

Chief Justice Roberts concluded, "The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought...Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple--get a warrant."

Contact an Attorney Today

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 16, 2014

Maryland Court Of Appeals Reverses Criminal Defendant's Waiver Of Jury Trial

Recently, this blog discussed various aspects of a criminal defendant's constitutional rights to have a case tried before a jury under the Sixth Amendment to the U.S. Constitution. The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..." The right to be tried by a jury, like many other constitutional rights, may be waived by a defendant so long as certain safeguards are observed to prevent abuse of such waivers.

Recent Example

Recently, the Maryland Court of Appeals was called upon to determine the validity of such a jury waiver in Szwed v. State. In Szwed, the defendant, James Szwed, was indicted for burglary in the first, third, and fourth degree, plus theft of property over $1,000, and malicious destruction of property. Prior to the commencement of a bench trial, Szwed's attorney stated to the court that he had discussed the possibility of a bench trial and Szwed indicated that he wanted to be tried by the judge, not a jury.

The court explained that, at a jury trial, the finding of guilt beyond a reasonable doubt would have to be unanimous to convict Szwed, whereas, with a bench trial, the judge had to be certain beyond a reasonable doubt, with the difference being that it was one individual as opposed to twelve jurors rendering a verdict. Szwed affirmed that he understood these differences and elected to have a bench trial. The Court then found that Szwed had freely and voluntarily waived his right to a jury trial. Following the bench trial, the court found Szwed guilty of all counts and sentenced him to total of 15 years incarceration.

Szwed appealed, arguing that the trial court had erred in accepting his waiver of a jury trial. Maryland's Court of Special Appeals determined that Szwed was not able to challenge the waiver on appeal because his attorney had not objected, and even if the issue was preserved for appeal purposes, that the trial judge had sufficiently complied with rules governing waivers of jury trials.

On further appeal, Maryland's Court of Appeals explained that the trial court was obligated to follow Maryland Rule 4-246(b) in determining whether Szwed had properly waived his right to a jury trial. Maryland Rule 4-246(b) requires a trial court to engage in the process established by the rule, and state the trial court's findings that the criminal defendant's waiver of his right to a jury trial was made both knowingly and voluntarily. The Court of Appeals held that because the trial court had not explicitly found that Szwed's waiver was made "knowingly," the jury waiver was invalid. The Court of Appeals then reversed the convictions and remanded the case for a new trial.

Seek Help from a Criminal Defense Attorney

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

June 3, 2014

Maryland Court Of Appeals Holds That DWI's Suspects' Right To Counsel Is Limited In Administrative Actions

Earlier this year, this blog discussed oral arguments heard by the Maryland Court of Appeals in the case of Motor Vehicle Administration v. Deering, in which it had been called upon to decide whether law enforcement officers can deny a motorist's request to consult with an attorney prior to submitting to a blood alcohol concentration (BAC) test. Last week, the Court issued a controversial decision in the case, holding that drivers in Maryland impliedly consent to take a BAC test at a police officer's request as a condition of having their license, and by providing such consent, essentially waive their right to counsel.

The case stems from a May 3, 2012, traffic stop of April Marie Deering by a Fruitland, Maryland police officer. The officer placed Deering under arrest for DWI and transported her to the Maryland State Police barracks where he asked her submit to a breathalyzer test to determine her blood alcohol content. Deering requested that she be permitted to call her attorney prior to taking the test, but the officer refused. After the officer read a written statement informing Deering that the penalty for refusing to take the test was automatic suspension of her license, Deering took the test, showing a BAC reading of 0.16, more than twice the legal limit in Maryland.

Maryland's "implied consent" law states that a motorist that has been lawfully stopped and detained by a police officer, who has probable cause to believe that the individual has been driving while intoxicated, has impliedly consented to submit to a chemical test of his or her blood, breath, or urine for the purposes of determining blood alcohol content. Refusing to submit to a chemical test automatically results in an administrative license suspension of 120 days for a first offense and one year for subsequent offenses. Police are required to notify DWI suspects of the consequences of a refusal to submit to a chemical test.

Prior to trial, Deering moved to suppress the BAC results, and the trial judge agreed, holding that Deering had a right to call her attorney. The trial court then overturned Deering's 90-day license suspension, which an administrative law judge had imposed. In a 7-0 decision reversing the order to overturn Deering's license suspension, the Court of Appeals distinguished the administrative penalty of a suspended license from a criminal prosecution for aleged drunk driving. The Court recognized that while under the Court's holding in Sites v. State drivers do have a due process right to consult an attorney when a positive blood-alcohol test could result in prosecution, in the context of an administrative proceeding due to Maryland's implied consent law, no such right exists.

Writing for the Court, Judge McDonald opined, "A driver's interest in the continued right to drive in Maryland is certainly an important one that can affect the individual's ability to work and otherwise function in society. That interest must be weighed against the public interest to deter drunk driving and to protect the public, not to mention the impaired driver, from the consequences, often fatal, of impaired driving."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been accused of DWI or DUI. If you or someone you know has been charged with a DWI or DUI in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

May 28, 2014

Maryland Court Of Special Appeals Considers Constitutional Right To Trial By Jury

The right to be represented by counsel arises under the Sixth Amendment to the United States Constitution, as does another important constitutional right, which was recently addressed by the Maryland Court of Special Appeals: the right to have a case tried to a jury. The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..."

In Abe v. Maryland, the defendant, Stephanie Ann Abe, was charged in the District Court for Allegany County with theft of property valued at less than $100, which is punishable by "imprisonment not exceeding 90 days or a fine not exceeding $500 or both." After Abe requested a jury trial, her case was forwarded to the circuit court. The circuit court remanded the case back to the District Court, holding that Abe was not entitled to a jury trial because the maximum penalty for theft charge did not exceed 90 days imprisonment.

Maryland Code § 4-302(e)(2)(i) provides, "[U]nless the penalty for the offense with which the defendant is charged permits imprisonment for a period in excess of 90 days, a defendant is not entitled to a jury trial in a criminal case."

Abe appealed the denial of a jury trial to the Maryland Court of Special Appeals, arguing that she had a constitutional right to trial by jury. In concluding that Abe was not entitled to a jury trial for the theft charge, the Court of Special Appeals analyzed three factors:

• Was the petty offense subject to decision by justices of the peace, or was it an offense historically tried before juries?
• Was the accused subject to an infamous penalty, i.e. a significant penalty imposed by statute or incarceration?
• Was the offense considered serious?

The Court concluded that petty theft was historically tried before justices of the peace and not to a jury, thereby suggesting that a jury trial would not be appropriate in Abe's instance. The Court did recognize that theft had always been considered a serious offense, however, petty theft was divided into two categories: one that provided for a more serious sentence of imprisonment not exceeding 18 months, and the other a less serious sentence, imposing imprisonment not exceeding 90 days. The Court resolved that, because Abe's offense was punishable only by a maximum prison sentence of 90 days, it was a less serious offense to which the right to a jury trial did not attach.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

May 13, 2014

Maryland Prosecutors To Deal With New Issues Associated With Decriminalization Of Marijuana

Last February, this blog discussed Maryland Senate Bill 297, which proposed to eliminate the potential for jail time as a punishment for possession of marijuana in favor of a maximum fine of $100, and remove the offense of marijuana possession, less than ten grams, from the state criminal code. On April 14, 2014, a similar piece of legislation, Senate Bill 364, which decriminalizes marijuana, was signed into law by Maryland Governor Martin O'Malley, and will become effective October 1, 2014.

The new law reduces the penalty for possessing less than 10 grams of marijuana from a criminal to a civil offense. First-time offenders face fines up to $100, while a second offense is punishable with a fine up to $250, and subsequent offenses up to $500. The new law also mandates that third-time offenders or offenders under the age of 21 be evaluated for substance abuse problems and attend drug education classes.

The current statute in effect makes possession of marijuana less than 10 grams a criminal misdemeanor with possible jail time of 90 days and or a $500 fine. Under current Maryland Annotated Code §5-601, a person who uses or possesses marijuana, more than 10 grams, is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both on a first offense. However, felony possession of marijuana with intent to distribute, manufacture, traffickers of marijuana, individuals in possession of large amounts of marijuana, or those who have previously been convicted of drug offenses may be subject to prosecution for more serious offenses with harsher penalties.

Prosecutors are struggling to address several challenges that they anticipate will arise due to the provisions of the new law. Although the law decriminalizes possession of small amounts of marijuana, possession of rolling papers, pipes and other marijuana accessories will remain a criminal offense. This means that a person could be charged criminally for the rolling papers used to make a joint, but not the marijuana inside if it is less than 10 grams.

Another problem for prosecutors will be determining when to charge an individual with the graduated fines that are supposed to be imposed for repeat offenders. According to a statement made by Baltimore County prosecuting attorney Scott Shellenberger, it will be difficult for law enforcement to establish whether an individual has been charged with marijuana possession before because prior offenses will not be documented in the criminal database.

A number of prosecutors from across the state sent Governor O'Malley a letter urging him not to sign the bill, arguing that it was passed too hastily. "Clearly we could've gotten a better bill than this," commented Shellenberger. Shellenberger stated that Maryland's prosecutors will send out guidelines for enforcing the new law, but all of the counties could not agree whether or not to arrest individuals for carrying marijuana accessories.

Senator Bobby Zirkin of Baltimore County, the Bill's chief sponsor, indicated that the criminal penalties for possession of marijuana paraphernalia were intentionally left alone, stating that doing so would ensure that if police observe marijuana paraphernalia in a suspect's vehicle, there would be legal grounds to conduct a search of the car. Zirkin stated that the legislature would consider eliminating penalties for marijuana paraphernalia next year.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending individuals charged with drug crimes in both state and federal courts. If you or someone you know has been charged with a drug crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 28, 2014

United States Supreme Court Rules Anonymous 911 Call Sufficient For Police To Conduct Traffic Stop

On April 22, 2014, the United States Supreme Court issued landmark decision in the case of Navarette v. California, holding that police are permitted to conduct a traffic stop of a suspected intoxicated motorist based solely on an anonymous tip by a 911 caller. In Navarette, the defendant, Prado Navarette, was stopped by a California Highway Patrol officer because the car he was driving matched the description of a vehicle that a 911 caller had reported as having run her off the road. Upon approaching Navarette's vehicle, the officer smelled marijuana, and searched the truck's bed, discovering 30 pounds of marijuana.

Navarette filed a motion to suppress the marijuana, arguing that the traffic stop had violated the Fourth Amendment. The trial court denied the motion, holding that the officer had reasonable suspicion to conduct the traffic stop based on the information provided by the 911 caller. Navarette pleaded guilty to transporting marijuana and was sentenced to 90 days in jail and three years of probation.

On appeal to the U.S. Supreme Court, Navarette again argued that the traffic stop had violated his Fourth Amendment rights because the 911 caller's tip was insufficient to establish reasonable suspicion that Navarette was engaged in criminal activity. The authority of police to conduct traffic stops derives from the United States Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968), in which the Court held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity.

With Justice Thomas authoring the 5-4 opinion for the majority, the Court voted to affirm Navarette's conviction, opining that "under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspi¬cion that the driver of the reported vehicle had run another vehicle off the road."

The Court reasoned that the 911 tip was reliable, because 911 calls are recorded and the phone number of the 911 caller is passed on to the dispatcher. The Court further concluded that the 911 caller's reliability was supported by the fact that law enforcement officers were able to corroborate some of the facts reported by the 911 caller.

Justice Scalia delivered a scathing dissenting opinion, arguing that the majority built its constitutional conclusion on a series of weak findings. Scalia wrote, "After today's opinion, all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving." Scalia concluded, "The Court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity..."

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

April 14, 2014

United States Supreme Court Address Requirements For Conviction Of Federal Firearm Charges

Last month, the United States Supreme Court issued an important opinion in the case of Rosemond v. United States, holding that the trial court failed to properly instruct a jury of the elements of an "aiding and abetting" charge and reversing the defendant's conviction as a result of said impropriety.

In Rosemond, the defendant, Justus Rosemond, was in a car with two other men, all of whom were attempting to sell marijuana to another individual. At some point during the transaction, the buyer punched one of the sellers in the face and fled with the drugs. One of the sellers fired several shots from a handgun at the thief, then all the sellers got back into the vehicle and gave chase. Before the three caught up to the thief, however, they were pulled over by a police officer.

Rosemond was charged federally with using a gun in connection with a drug trafficking crime and aiding and abetting that offense. Federal law makes it a special crime to commit a drug offense while using a gun, and allows a court to impose an extra five year prison term for the gun charge. In prosecuting Rosemond, the Government argued that he was the shooter; however, because several witnesses disputed the shooter's identity, the Government also contended that, even if Rosemond was not the shooter, he had aided and abetted the offense and was therefore punishable as if he had been the shooter.

At trial, Rosemond requested that the trial court instruct the jury that, in order to find him guilty of aiding and abetting, it had to find that he "intentionally...facilitate[d]...the use of the firearm." Despite this request, the trial court instructed the jury that it need only determine that Rosemond "knew his cohort used a firearm" and that he "actively participated in the drug crime." Rosemond was convicted of aiding and abetting and the trial court imposed a consecutive sentence of 10 years of imprisonment.

On appeal to the U.S. Supreme Court, Rosemond argued that he had no idea that a gun would be used in the crime and it was error for the trial court not to instruct the jury that Rosemond had to know ahead of time about the firearm to convict him of the gun charge.

In a 7-2 decision, the United States Supreme Court reversed Rosemond's conviction, holding that, in order to be properly convicted as an aider and abettor, Rosemond had to have "foreknowledge" that one of his cohorts would use a gun, not just that a drug deal would occur. The Court concluded that the trial court had instructed the jury that it was enough that Rosemond knew of the drug crime and that "his cohort used a gun", not that he knew that his companion would use a gun. Essentially, the Court held that the Government had to prove that Rosemond knew in advance that someone else would use a gun, and far enough in advance so that he could withdraw from the crime if he so chose.

The knowledgeable attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending individuals that have been charged with state and federal crimes, including cases involving mandatory or enhance penalties. If you or someone you know has been charged with a crime, contact the attorneys of Brassel, Alexander & Rice, LLC today.